Thursday, August 5, 2021

Part I

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Government by Whatever You Can Get Away With? Democrats Push for (and Get) a CDC Order that is Almost Certainly Unconstitutional

Serious Christians have to think seriously, and that means sometimes we have to take issues apart. We have to understand that there are several issues sometimes entwined in one. Even when it comes in a single headline. Consider the headlines coming just this week from President Joe Biden’s announcement that he would, through the Centers for Disease Control, extend a moratorium on evictions through October the 3rd of this year.

Now, what’s in that story? Well, for one thing, you have the issue of eviction, you have the morality of housing in the United States, you have serious financial economic policy questions, but you also have an even bigger issue. Now, as we think about thinking, we sometimes have to distinguish between formal and material issues, or formal and material principles. That may sound complex, trust me, it will be worth your consideration.

A formal matter is something that’s based upon a principle that will be replicated over and over again. That’s why it takes a form. It establishes a form. The principle underlying this story, that foundational issue is actually the role of constitutional government and whether or not a government is acting, in the case of the United States, in a way that comports with the United States Constitution. That’s a formal issue. It’s the more important issue actually.

The other issue flows from that constitutional interpretation, and that gets down to the debate about what kind of housing policy we should have. That’s a more material issue than the formal question of the Constitution, but you might not know that from looking at the headlines, and that formal issue is paramount. We need to look at it. Because what we saw in that announcement that came Tuesday from the president of the United States is the acknowledgement from the president about what amounts to an executive action with his understanding that the preponderance of constitutional scholarship says that what he is doing is unconstitutional and yet he went on and did it.

Speaking of his own announcement about this extension of the moratorium on evictions from the Centers for Disease Control, the president said right out loud, “The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster, but there are several key scholars who think that it may, and it’s worth the effort.” Now, almost never do you have a president of the United States speaking of something such as constitutionality, who says, “I know that most constitutional scholars think that what I’m doing is probably unconstitutional.” Just think about that for a moment. But he goes on and says, “But I’m going to do it anyway.” He says, “There are several key scholars,” very interesting way to put it, “who think that it may,” that means maybe constitutional, it just might be constitutional, and then he said, “It’s worth the effort.”

Now, what’s going on here? Well, if you actually look at the issue, it’s about two rival understandings of how to read the constitution. Two rival understandings of the role of the government of the United States of America. Two rival understandings of how the government should or should not basically seek to take over the economy. The issue in this case is housing and that gets back to something very strange that happened in the immediate aftermath of the COVID-19 pandemic arriving in the United States.

The Trump administration took action to try to establish some stability and security as the pandemic hit and the shutdowns began and it was the Trump administration who put in place for the first time, as a part of the official response to the pandemic, a moratorium on evictions. So that under the circumstance of the economy being shut down, those who would get behind in their rents because they were not being paid, would not be evicted from their homes.

Now, that was somewhat controversial, but given the scale of all the issues that the nation was confronted with and the pandemic, it was not a major issue of concern. And furthermore, it had a time limitation on it. It was very unusual. Here, you have the federal government presuming to have the authority, but under the circumstance of a crisis to say, “In the circumstance of this shutdown, it’s a national emergency. We’re going to give security to people with this moratorium on evictions for a fixed period of time.”.

But when that moratorium expired, a very interesting thing happened. A new moratorium on evictions was put in place by the Centers for Disease Control. Now, at that point, many of us simply came to the immediate conclusion, that’s not within the legal authority of the CDC. The CDC is, basically, not only an organization, an entity of the federal government, it has certain enforcement provisions. There are certain powers that are invested in the CDC by congressional authority, but those powers had been considered to be primarily matters directly related to disease or the spread of disease, or more importantly, the prevention of that spread.

And so the CDC would have power to say, “We’re going to allocate the resources here. We’re going to allocate certain medications there. We’re going to contravene even the authority of states when it comes to certain issues in the midst of a crisis.” But a moratorium on evictions, let’s just remind ourselves what that means, that means that the government is saying to those who are landlords, you can’t evict someone even if they failed to pay rent. That kind of moratorium, that kind of policy is, and this is putting it generously, only obliquely inferred from any kind of authorization of the power of the Centers for Disease Control. But the CDC claimed that in the context of the pandemic, it was acting to prevent families and others, extended kinship structures, from being congregated together in ways that might facilitate the spread of the disease.

Now, let’s just stay candidly that that logic could be extended, by that kind of inference, to almost any area of the economy whatsoever. That came to the attention of those who sued the federal government saying that the CDC had acted illegally outside of its legal bounds in a way that basically was unconstitutional. And the Supreme court of the United States considered the issue, and what it responded with was a 5-4 ruling. But that 5-4 ruling was interesting because even as the majority of justices left that policy the CDC in place, Justice Brett Kavanaugh, the crucial fifth vote against striking the CDC’s action down came only because he said he did believe it was unconstitutional, but it was going to expire anyway and so the court need not respond.

But Justice Kavanaugh really issued a very clear warning, this CDC action is unconstitutional. Then you add up the votes believing that it’s unconstitutional, it’s a clear majority of the U.S. Supreme Court. So much so, that in recent weeks, the President of the United States, Joe Biden, had told his administration and had advised Congress that he and his administration had no legal or constitutional power to extend this moratorium on evictions. The moratorium that the CDC had put in place expired July the 31st. Immediately the left wing of the Democratic Party went into panic, arguing that this was going to lead to a national crisis and the CDC needed to put in place, once again, the Biden administration that is, through the CDC, must put back and forth a moratorium on evictions, a continuation of the moratorium that would now go back well into 2020.

Now, we need to understand this means a massive federal government intervention in what is a private part of the American economy. We’re talking about the federal government through the CDC telling landlords that they basically had to stop enforcing rental contracts, that’s the bottom line. And millions of Americans stopped paying their rent, but we’re also looking at a bigger picture. And that is the fact that the Democratic left has been taking the opportunity, seizing the opportunity, by the way, as advocates, a big government would do, in the context of the COVID-19 pandemic, to have the federal government assume aggressive new powers. But here is the thing, the Democratic left and the advocates have a more activist, a larger, even more energetic administrative state have no intention of ever agreeing to an expiration of these new government powers. These new government intrusions into the economy. The blunt fact is that the Democratic left will never say under any circumstance that this moratorium can go away.

That is that the economy can go back to operating on the basis of a private economic contract between a landlord and a lessee. They’re never going to say that. You had Cori Bush, a newly elected member of Congress from the area around St. Louis, who started a sit in on the steps of the Capitol to bring political pressure against the president of the United States. You had others such as California representative Maxine Waters doing the very same thing. And when it comes to that formal issue, the constitutional issue, well, here you had two members of Congress who flatly argued. They really didn’t care what the Constitution said. They even called upon the administration to act in a way that might, on its face, be unconstitutional because they would be buying time for this government activism.

It should be, to Americans, absolutely astounding to hear an elected member of Congress, in this case Representative Maxine Waters of California, say something like this, “I don’t buy that the CDC can’t extend the eviction moratorium, something it has already done in the past, who is going to stop them? Who is going to penalize them? There is no official ruling,” Waters went on in a tweet to say, “saying that they cannot extend this moratorium. Come on CDC, have a heart. Just do it.” Now thinking about that for a moment. Notice the language is being used here. It is, we demand that this be done. It might be unconstitutional, but where is the police force? Where is the army to enforce the constitution? This is an elected member of Congress making this argument.

Similarly, representative Cori Bush, again of the St. Louis area, in response to a question from Steve Inskeep, of National Public Radio said, “We are saying…We are asking the White House to move with this. We are asking the White House to go ahead and set a new moratorium and let us get that action rolling while Congress reconvenes. Let’s have Congress come back and reconvene. Let’s get these votes. Just get the 218 votes. And while we’re working on that, we will at least have the moratorium in place. If there is a challenge to the White House, that will take a little bit of time. And that will give us time to be able to make sure that we don’t have hundreds of thousands of people a day….” Steve Inskeep, after she said, “being evicted” said, “I want to understand this. I think you’re saying to the president, please extend this ban and tell anybody who doesn’t like it, sue me.”

The member of Congress then said, “Yes, that’s exactly what I’m saying. We’re in the middle of a global deadly pandemic as we speak that is surging. In a lot of areas around the country, we cannot afford to have anywhere from 7 million to 11 million people now on the street. We didn’t correct the housing crisis we already had.”

It’s a pretty astounding comment from a member of Congress. Most importantly, because she is saying, don’t worry about the constitution. Even if this is eventually ruled unconstitutional, we’re buying some time. Just about the same time, the Brookings institution, that’s a fairly liberal think tank that is supportive of the administrative state. The Brookings Institution came out with a report saying that even if the moratorium is put in place on the other side of it, America will still have a housing crisis. No doubt. That’s true. And by the way, there are at least several contributing issues to that housing crisis. One of them is the fact that you have the Democratic Party trying to move the economy towards a situation in which there is less and less of an incentive for people to work.

If they don’t work, they don’t have rent to pay. And this is behind the whole idea that there will be a universal minimum income. There will be some major form of economic assistance that is not tied to whether one works or not. And furthermore, a basic government expansion of its power into all sectors of the economy, including housing. But this is where Christians have to understand we really do care about human flourishing based upon our biblical theology. We really do care about human needs being met, but we really don’t have a debate right now in this country as to whether that’s more likely to happen by a government extending its federal authority, where it may not even have constitutional right or power or whether a market economy is far better to meet those needs. To put it another way, in the midst of this, where is the incentive for people to invest in building housing, if indeed that housing may end up being an economic liability rather than an economic asset.

Historically, by the way, we have seen this same kind of dynamism in response to other legitimate crises. No doubt, the Great Depression was itself, in the period from 1929 and forward, a genuine crisis, but it still remains questionable as to whether or not it was the federal government that rescued the American economy by its activism, even in the context of the depression. But there is no historical argument that the government policies and programs that were put in place, many of them, supposedly temporary, were actually long lasting, even if they were renamed and subsumed within an ever expanding government. We also understand that the constitutional issue really is urgent. It’s paramount because we lose our constitutional system of government, we have nothing left, but an activist government itself. And if you look at the US constitution, and again, this was based upon Christian assumptions about the necessity of limiting power and regulating power.

The United States Constitution is based upon the conviction of enumerated powers. That is to say the federal government has the powers that the constitution clearly states that the federal government has. And it has no other authority, no other power. The 10th amendment to the US Constitution states it clearly, “The powers not delegated to the United States by the constitution nor prohibited by it to the states are reserved to the states respectively or to the people.” That means where there is no clear statement of governmental power, there is no constitutional exercise of that power. Since then, those enumerated powers have been expanded to include implied powers. Of course, just considered that that’s indirect. If you’re looking at enumerated powers, they’re right there in the text of the Constitution. These implied powers, well, you’re at a distance from that, but now you’re looking at the fact that you have members of Congress and indeed you have the president of the United States, the nation’s chief constitutional officer saying, “I know that what I am doing is probably not constitutional, but I’m going to do it anyway.”

There’s precedent for that too, but not with quite the same boldness of language. Back in his first term, President Barack Obama was confronted with the question of what to do about those who have been brought to the United States by undocumented arrivals, as children. They’ve been raised in the United States. And they met several criteria such as either having a job or having a continuation of education, being students and having avoided any kind of criminal activity. President Obama wanted to find a way for those children, they were called childhood arrivals, to stay in the United States with some kind of permanent status. But he said out loud to the public that he did not have the constitutional right to do so by executive order. And by the way, he was right in that fact. But regardless of where you come down on the question of what kind of policies should be put in place, there is no question that President Obama, as he was running for reelection actually did what he had previously said out loud he believed was unconstitutional.

He put in place in the executive order now known as DACA that’s Deferred Action for Childhood Arrivals. And he did so. And once he did do so, whether it’s constitutional or not, it basically has stayed in effect. Now, here is the thing, President Obama believed it was unconstitutional, but he went on and did it. President Biden acknowledged Tuesday it’s likely that what he’s doing is unconstitutional, but he did it anyway. Two members of Congress more or less said they didn’t care whether it was constitutional or not at least it would buy some time. Here you see the absolute subversion of a constitutional form of government. The issues at stake in both of these controversies, by the way, whether it be immigration policy or housing policy, those policy debates onto be had on their own terms, but not at the expense of the constitution, not by executive order.

One final thought on this matter, Congress has the power to act in many of these issues, but it simply doesn’t. It hasn’t. Maybe people will argue politically it can’t. But that doesn’t mean that it is thus left to the executive branch of the government to act on unconstitutional authority because Congress can’t act and fulfill one of its constitutional mandate. The Wall Street Journal, by the way, responded with an editorial headline, “The eviction ban has to end some time, but then again, maybe that’s a dubious proposition and the age of the ever expanding logic of the administrative state.”

Part II

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Defecting Belarus Sprinter Reminds Us of the Preciousness of Liberty and the Fragility of Freedom

But next we shift to the international context and a defection. In this case the defection of Krystsina Tsimanouskaya, a sprinter from the nation of Belarus playing for that nation’s Olympic team in the Tokyo games. She sought to defect, which is effectively what she did being rescued, even as she was being forced upon a flight back to Belarus, where she said she would be facing repression and punishment, just for a statement she had made critical of one of the coaches of the Olympic team. By the way, the son of the strong man dictator there in Belarus, is also the head of the Belarus Olympic Committee.

This hearkens back to prominent defections from the Soviet Union and its satellite nations to the west, particularly to the United States and other European allies seeking freedom against communist repression. Many of these defectors were either spies, that’s one thing, or they were prominent athletes and performance artists. For instance, ballet stars. They were often on performance tours or at major athletic tournaments or events and they sought refuge by defecting to the west. That appeared to be ancient history or at least the history of the Cold War, some decades ago, but now it’s frontline news again. And it has to do with the fact that in one sense, the Cold War is not over. Belarus was part of the Soviet Union. It is now one of the satellite states that is roughly allied with Russia under strongman, Vladimir Putin. The head of Belarus, the dictator of that nation effectively since 1994 is Alexander Lukashenko, and his grip has been tightening.

We talked about Belarus just weeks ago on The Briefing because of an incident related to the capture of a dissonant by forcing an airliner to land. Now at the very same time as Krystsina Tsimanouskaya sought to defect and is now with her husband, by the way in Poland, the body of Vitaly Shishkov was found, another prominent dissident. His body was found hanging from a tree in Kiev, of Ukraine. Sometimes pronounced Kiev. Ukrainian authorities have announced an investigation as to whether it was a suicide or a murder, but it is unlikely that it was a suicide. That would be very convenient for Lukashenko and for the regime there in Belarus. Some listening to The Briefing will not remember some of the most prominent defections of the 20th century going back even to the early years of the Bolshevik revolution. 1924, George Balanchine, famous choreographer, defected to the west. Czeslaw Milosz in 1951, prominent author. Cardinal Jozsef Mindszenty of Hungary in 1956. Rudolph Nureyev, the famous ballet artist on tour in Paris, defected in 1961. Svetlana Alliluyeva, defected in 1967. She was not a ballet artist.

She was not a pianist. She was not a gymnast. She was the daughter of the Soviet dictator, Joseph Stalin. In 1974, another major ballet star Mikhail Baryshnikov defected to the west. In 1975, it was one of the world’s most famous tennis stars, Martina Navratilova. And then, having to do with someone known to the Olympics in 1989, Nadia Comaneci. She had defected as a gymnast from Romania. Now, if you’re looking at the headlines then, and compare them to the headlines now, here’s something in Congress which we should celebrate and appreciate. Krystsina Tsimanouskaya and her husband are now in refuge in Poland. Poland was under a communist regime, if you go back to the Cold War, under the domination of the Soviet Union, but now it is not. Instead, it has guaranteed the freedom of Krystsina Tsimanouskaya and her husband. That’s quite a turn of events.

Poland has gone from a nation from which people defected for liberty to a nation where people are now defecting to it for liberty. The names of all those just mentioned should remind us of something very important and that is just how precious liberty is precious and rare and always in need of stalwart defense.

Part III

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French Teenagers Love Culture! French Government Inadvertently Boosts Country’s Comic Book Sales in the Name of Introducing Young People to Culture

Finally, we’ll end on the world of art. Sort of. French President Emmanuel Macron led his government to give a certain kind of cultural allocation to 18-year olds in that nation, believing that as new adults, they have to be given some capital in which to experience culture. They meant high culture. They meant museums. They meant art. They meant ballet. They meant opera. But the reports coming from France say that the 18-year olds being given the equivalent of about 350 American dollars are indeed spending the money on culture.

The biggest selling item, comic books. After all the teenagers had been told that could spend the money on any dimension of culture they so chose. And now they’re choosing, comic books. And with that $350 given to all French citizen teenagers, it turns out they might not actually save culture, but they might save, comic books.